Reopening of Denied H-1B Petitions Relating to Client Site Employment, Computer Positions

Have your H-1B petitions been denied by USCIS in the past few years based on reasons relating to third-party worksite employment?  Or based on findings that a computer position was not a qualified H-1B specialty occupation?  If so, you may be able to request reopening and reconsidering of your petition by USCIS. 

USCIS announced on 3/12/2021 that it may allow petitioners to file motions to reopen and/or reconsider denied I-129 H-1B petitions if the denials are based on three rescinded USCIS memos:  3/31/2017 memo (regarding computer programmer positions), 1/8/2010 memo (regarding employer-employee relationship), and 2/22/2018 memo (regarding requirements of contracts and itineraries for third-party assignments). 

The regulation generally requires that motions to reopen and motions to reconsider be filed within 30 days of the adverse agency decision.  However, USCIS announced that it may accept motions relating to the rescinded memos as long as they are filed before the end of the H-1B validity period requested.  So, for example, if a denied petition requested for H-1B employment for a worker from 10/1/2018 to 9/30/2021, the parties would have until 09/30/2021 to file a motion.

If your H-1B petition was denied for the following reasons, you may be able to request reopening of your petition for reconsideration by USCIS:

• A finding that your computer-related position (e.g., programmer) was not specialty occupation
• A finding that there was no valid employer-employer relationship between the petitioner and the H-1B worker
• A finding that there was insufficient contractual relationship between the petitioner and the end client (e.g., failure to produce end-client letter, contracts, itineraries, statements of work, etc.)
• A finding that there was no or insufficient non-speculative assignments to support the H-1B petition
• A finding that there was insufficient control by the petitioner over the H-1B worker during the employment period

These are just some examples of reasons for reopening. There may be other valid reasons.  In some situations, it may not be worthwhile to ask for reopening.  For some petitions including first time H-1B CAP petitions, reopening may make sense as it is the only way to save the allocated H-1B visa number.   When in doubt, you should consult with an experienced immigration attorney.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.) 

Removal Orders Can be Reopened Despite Failure to Report Address Change

A person in removal proceedings moved to a new address, but he keeps his mailing address the same, and the immigration court has that address.  In this situation, even if the court hearing notices sent to his mailing address are returned as "attempted, addressee unknown," the immigration judge may not categorically order his deportation in his absence, according to a recent decision by the First Circuit Court of Appeals. (Renaut v. Lynch, 6/4/15)

The respondent in this case was living with his friend and used his address as his own.  However, a few years later, the respondent moved out to another address. After his move, he still kept on using his friend's address.  Later on, the court's hearing notices sent to this address were returned as "attempted, addressee unknown".  It appeared that his friend also moved away afterwards.  Eight years later, the respondent married a U.S. citizen and attempted to remove his removal case so that he may apply for permanent residence status.

Both the immigration judge (IJ) and BIA held that he could not reopen his case because he failed to notify the immigration court his new address.  The IJ and BIA held that his failure to report his change of address amounted to evasion of hearing notice, and therefore his motion could not be reopened.

The Appellate Court disagreed, holding that an IJ may rescind an in absentia removal order if the respondent demonstrates that he failed to receive his court notice.  While the issue to consider in entering in absentia order is whether the notice is properly mailed, the focus is shifted to whether the respondent actually received the hearing notice in deciding on a motion to reopen.

The Appellate Court also could not find any legal basis to support the proposition that the respondent

 was required to provide a residential address, as opposed to just a valid mailing address. The Court observied that the Notice to Appear actually advised the respondent that he was "required to provide . . . your full mailing address."   The Notice of Appear does not  specifically mention a residential or physical address.

This issue is important because both the IJ and BIA concluded that the respondent evaded delivery of the court hearing notice by his failure to update his physical address.  And such an evasion is the basis for the denial of his motion to reopen.  The Appellate Court noted that there is insufficient factual basis in the record to further investigate this issue.  Therefore, it decided to remand the case to the immigration court to re-consider the motion to reopen again.

This decision is important as many removal orders (deportation orders) are entered every year due to address changes.  It is also important to understand that this decision does not mean that the respondent's case will definitely be reopened at the end; it merely provides another way for respondents with in absentia orders to attempt to reopen their cases.

BIA allows reopening of proceedings to apply for asylum based on changed country conditions

The BIA allows a Chinese national to reopen his removal case to apply for asylum and withholding of removal based on changed country conditions arising in the country of the alien’s nationality or the country to which removal has been ordered, without having first to rescind a prior in absentia order of removal.  Matter of J-G-,  26 I&N Dec. 161 (BIA 2013).  The respondent was ordered deported previously because he failed to show up for his removal hearing.  After analyzing the relevant statutes, regulations and  legislative history, the Board concluded that the respondent may file a motion to reopen his case to apply for asylum and withholding of removal if he can prove that the country conditions have changed, the changes are material and were not available and could not have been discovered or presented at the time of previous hearing.
Further, normally a respondent may only file one motion to reopen after the conclusion of a removal case.  The BIA also held that this numerical limitation on filing a motion to reopen in 8 C.F.R. § 1003.23(b)(1) (2013) does not apply when the respondent is seeking reopening to apply for asylum and withholding of removal based on changed country conditions.  Here the Chinese respondent based his motion on his conversion to Catholicism and his assertion that there has been increased persecution of the underground Catholic Church in China. 

Appellate Court Allows Deported Aliens to File Motions to Reopen

May a non-citizen who was previously in deportation proceedings file a motion to reopen his case after he was removed from the United States? The answer is yes, according to a recent a decision by the 6th U.S. Circuit Court of Appeals, Pruidze v. Holder, decided on Feb. 3, 2011.

For many years, the Board of Immigration Appeals (BIA), Immigration Judges and immigration officials have relied on a regulation promulgated by the Attorney General to disallow removed aliens from reopening their immigration cases after they have been physically been removed from the United States. This immigration regulation, commonly known as "the departure bar," can be found at 8 C.F.R. § 1003.2(d). Although there has been several major changes in the immigration statute, the Board of Immigration Appeals still maintains that the departure bar is in full effect, most notably in the decision of Matter of Armendarez-Mendez, 24 I. & N. Dec. 646 (B.I.A. 2008), which held that the "departure bar" divests the BIA of jurisdiction to adjudicate motions to reopen filed by aliens who are no longer in the U.S

The 6th Circuit recently reviewed this issue and struck down the departure bar based on two main reasons. First of all, the Circuit Court was not able to find support in the immigration statute for this bar. There is no written law that explicitly takes away the BIA's power to adjudicate a motion to reopen filed by aliens who have left the country. The Court noted that the relevant statute regarding motion actually empowers, rather than limits, the ability of aliens to file a motion to reopen. The statute contains no requirement that the person must be physicaly present in the U.S. to file the motion. In fact, Congress actually repealed a law in 1996 that was a statutory bar for judicial review. It means that Congress invalided a law that barred federal courts from entertaining requests to reopen deportation case after the subject alien has been removed from the U.S. The repeal is another indication that Congress is not in favor of the departure bar. Secondly, the 6th Circuit also cited some recent U.S. Supreme Court decisions to support the notion that the BIA does have jurisdiction (or power) to decide motions to reopen filed by deported aliens. Hence, the 6th Circuit Court of Appeals concluded that the departure bar regulation is not valid.

Although Pruidze v. Holder is only controlling in the states within the 6th Circuit, it is still a very important decision. Generally, any circuit court decision represents persuasive authority that must be considered by the BIA, Immigration Judges and government attorneys. Under the current motion rule, a foreigner generally only has a small window of time to file a motion to reopen. It is not unusual that they are physically removed from the U.S. before they have a chance to file a motion. Pruidze opens the door for these deported aliens to have at least a chance to present their motions.

Immigration and Customs Enforcement Sets Enforcement Priorities

A recent memorandum of the Immigration and Customs Enforcement (ICE), a branch of the Department of Homeland Security, places strong emphasis on the deportation of foreign nationals who are the subject of a final order of deportation. The December 8, 2009, memorandum, authored by Mr. John Morton, ICE Assistant Secretary, makes it clear that the agency’s core mission is the apprehension and removal of fugitive aliens. This memorandum sets up the agency’s priorities, goals, and expectations in terms of enforcement efforts and use of resources when dealing with these individuals.

“…[S]ound administration of the nation's immigration system depends on an efficient, fair, and meaningful removal process. As a result, it is the clear policy of this agency that final orders of removal should be enforced and that those who knowingly disobey or evade a final order of removal should be apprehended and removed,” according to the Assistant Secretary.

The ICE memorandum divides up enforcement efforts into three tiers as follows: Tier I Fugitive aliens (with final deportation orders). Tier 2 Previously removed aliens. Tier 3 Removable aliens convicted of crimes. Within each tier, individuals who post a threat to national security are given the highest priority, followed by foreigners who have been convicted of violent crimes or who otherwise pose a threat to the community.

Furthermore, when dealing with non-criminal deportable individuals, ICE officers are to consider other factors such as absentia orders and pending applications for relief before U.S. Citizenship and Immigration Services. Generally speaking foreigners who may have a chance of successfully reopening their cases and submitting relief applications from deportation are to be given lower priority unless there exists other aggravating circumstances. On the other hand, the most recently issued final orders of deportation and cases with the most investigative leads will be given higher priorities. ICE agents are encouraged to expeditiously act on current, time-sensitive leads to increase the chances of apprehension.

Although these tiers and levels provide some basic guidance to the agency, the Assistant Secretary emphasizes that they should not be applied “so rigidly as to undermine sound judgment when exceptions are warranted by circumstance.” This remark suggests that the field officers may and can use their discretion in individual cases.

ICE officers will also receive Constitution Law training every six months which will focus on the special issues and considerations involved when ICE officers are making arrests at personal residences. It should be noted that, during an enforcement operation, if other deportable aliens who are not targets of the operation are encountered by ICE officers, they will also be placed in removal proceedings.

Most of the deportable aliens will be detained if they are apprehended. Congress passed laws to make it mandatory to detain individuals with final orders of removal. However, those who are physically or mentally ill, disabled, elderly, pregnant, nursing, or the sole caretaker(s) of children or the infants are not subject to detention unless there exists other aggravating circumstances.

Although the number of apprehensions and removal will be tallied and recorded, the Assistant Secretary has emphasized that quotas will not be imposed on the field officers so as to increase the apprehension and removal of non-criminal aliens. Criminal aliens here refer to individuals who actually committed a crime or crimes but not those who became fugitives by virtue of their immigration status.

USCIS Agrees to Reopen Certain H-1B Cases in Health Professions

About a month ago, we have discussed about a new USCIS policy memo on the requirements for H-1B beneficiaries seeking to practice in a health care occupation. This memo, dated May 20, 2009, clarifies the standards and licensing requirements for adjudicating H-1B petitions filed on behalf of beneficiaries seeking employment in a health care specialty occupation. As a follow-up to this memo, the USCIS issued further guidance on July 17, 2009, regarding this particular topic. Specifically, the USCIS announced that certain employers who received a denial of Form I-129, Petition for Nonimmigrant Worker, requesting H-1B classification for a beneficiary to practice in a health care specialty occupation prior to May 20, 2009, may request that the case be reopened by the USCIS.

What Cases can be Reopened by Government Motion?

The USCIS guidance states that if the H-1B petition (Form I-129) was denied solely on the basis that the beneficiary did not have a master’s or higher degree in the field, the petition may be reopened on service motion. What it means is that the USCIS will reopen the case on its own motion. Further, the reopened H-1B case will be adjudicated in accordance with the May 20, 2009 memorandum regarding the requirements for H-1B beneficiaries seeking to practice in a health care occupation. For more information about the May 20, 2009 memo, please review our blog discussion at http://szetolaw.com/blog/2009/06/. It is important to note that the USCIS will only review denials of petitions for which it has received a written request for review from the petitioning employer or its representative. In other words, if the employer had failed to respond to the government’s previous request for further evidence, the case will be not reopened on government motion.

How Can a Request be Made to Reopen denied H-1B Petitions?

Normally, the petitioner or applicant must affirmatively file an appeal or motion to reopen a case after a petition was denied. A fee must also be submitted with the appeal or motion. In light of May 20, 2009 guidance memo, USCIS is waiving the affirmative appeal and motion as well as the appeal or motion fees. If an employer and beneficiary believe that their case was denied solely because the beneficiary did not possess a master’s or higher degree in the health field, they may send an email to the Service Center that issued the denial of Form I-129 to request review of the denial. Such an affirmative request for review from the petitioner or its lawyer is required to expedite this process. Such emails should contain this subject line: “PT/OT Service Motion Request”, and will be accepted through August 14, 2009. Requests for review of H-1B health care specialty occupation petitions that were adjudicated at the California Service Center should be sent to: csc-ncsc-followup@dhs.gov. Requests for review of H-1B health care specialty occupation petitions that were adjudicated at the Vermont Service Center should be sent to: vsc.ncscfollowup@dhs.gov. Additionally, the email should also explain how the beneficiary meets the standards set forth in the May 20 memo. The USCIS must be satisfied that the beneficiary is currently eligible to practice in their respective health care occupation in the state of intended employment. If not yet submitted, the parties should submit this evidence as well. It is unclear if additional documents can be attached to the email.

Other Types of Denials

The July 17 guidance addresses how the USCIS will reopen one specific type of denial. It does not mean that other denials cannot be reopened or appealed. Requests to appeal and reopen the other types of cases must be made according to the normal procedure of the USCIS by completing the proper forms or motion papers, and must be accompanied by the appropriate appeal/motion fees. Further, they must be submitted before the deadline for filing such appeals and motions.

Conclusion

Such an accommodation by the USCIS is definitely good news to the parties whose H-1B petitions were denied. However, it is important to note the motion to reopen does not guarantee an approval. The USCIS can request for additional information if it is deemed necessary. The USCIS may affirm that original denial should there be additional reasons to deny the petition. It is very important for the parties to be well-prepared before making the request to reopen these cases.